Experts widely agree that no single human right stands above all others, a view bolstered in recent decades by the ‘indivisibility’ principle. In this presentation it is argued that such a principle is misguided, because it fails to distinguish between state-monopolised, managerial regimes of goods and citizen-directed regimes of human rights. Throughout history, countless justice systems have included various means of delivering human goods, but only free speech can convert human goods into objects of human rights. Failures of international rights regimes are commonly blamed on lack of political will or on insufficient resources; however, insofar as international law has failed to acknowledge the foundational role of free speech, the prevailing regimes cannot be called human rights regimes at all.
For almost two decades free speech has been in global decline, after making unprecedented progress during the so-called Third Wave of Democratization. The contrasting fates of Nobel Peace Prize winning dissidents like Havel, Walesa, and Mandela on the one hand and Chinese dissident Liu Xiaobo on the other is a sobering illustration of how the Golden Age of free speech subsided into a free speech recession continuing into our day. By 1989, twelve years after Václav Havel co-authored Charter 77, Czechoslovakia’s Communist dictatorship was gone, and Havel president of a democracy. In 2017, nine years after Liu Xiaobo co-authored Charter 08 calling for democracy, human rights, and putting “an end to punishing speech as a crime,” he died of cancer after spending almost a decade in prison, and with the Chinese Communist Party firmly in control. What explains the free speech recession and how can it be reversed?
In the United States the legal protection of freedom of expression trumps the protection of other values, a sign of American exceptionalism. The harm often attributed to provocative or offensive viewpoints is rarely considered in the United States as sufficiently significant to mobilize state coercion. France and other European States limit freedom of expression to protect other values. The presentation will propose that the divergence in the balancing of freedom of expression can be understood in reference to the broader historical, social and philosophical context in which jurists operate. The balancing of freedom of speech and other values in France and the United States can be understood by reference to the understanding of liberty in a legal system formed at the moment of the French and the American Revolutions. This understanding affects how jurists define the content and the limits of a liberty and strike a balance between liberties in conflict.
Can the international human rights system properly address the diverse and formidable challenges to freedom of expression today? This paper distinguishes a set of global freedom of expression issues – namely, attacks on individuals speaking out, restrictions on content, and the curtailment of civic space – and provides a critical assessment of the normative standards developed by UN human rights bodies in response. In doing so, it emphasises the growing influence of a burgeoning international freedom of expression movement upon the development, understanding and implementation of ‘international freedom of expression law’, particularly soft law, under Article 19 of the International Covenant on Civil and Political Rights. The paper argues for a revitalisation of a global approach to the protection of freedom of expression based on the recognition and reinforcement of the interrelationship between states, UN human rights actors, civil society organisations, the media and companies.